Wade v. State, 45060
| Decision Date | 26 May 1988 |
| Docket Number | No. 45060,45060 |
| Citation | 258 Ga. 324,368 S.E.2d 482 |
| Parties | WADE v. The STATE. |
| Court | Georgia Supreme Court |
John T. Strauss, Strauss & Walker, P.C., Covington, for Johnny Lamar wade.
John M. Ott, Dist. Atty., Covington, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Sr., Asst. Atty., Gen., for the State.
Johnny Lamar Wade was convicted of murder and sentenced to death by a Newton County jury. This is his appeal. 1
1. On the morning of August 8, 1986, the victim, 13-year-old Lance Barnes, left his brother's house, where he had spent the night, and rode his bicycle to nearby Kittle's store.
The defendant stopped by Kittle's store at 11:30 that morning. He bought a sandwich and, while it was heating, told the owner that he was not going to pay further child support, and threatened to kill his ex-wife and her male companion if he saw either of them. Then the defendant played some video games, with the victim and another teenager.
The defendant left at 1:00 p.m. The victim put his bicycle in the back of the defendant's blue Ford pickup truck, and left with him.
Shortly thereafter the defendant was seen by a neighbor driving through his trailer park. A boy was with him. The defendant did not go home then--possibly because his parents were there. Instead, sometime between 1:00 and 2:30 p.m., he went to the post office in Jersey, Georgia. He returned home alone about 3:00 p.m., and went to bed (he worked a night shift).
At 6:48 p.m. (as shown by the store's video camera) the defendant entered a Mr. B's convenience store and bought two packs of cigarettes.
The victim's body was discovered that evening in a small clearing just off a narrow dirt lane that runs from the Alcovy Trestle Road through heavy woods to the Alcovy River. His bicycle lay nearby. He had been beaten severely about the head and strangled to death.
The defendant was questioned about the homicide the next morning. He stated that he had got off work at 10:00 a.m. the previous day. He went to a fast-food restaurant and ate breakfast, drove to a liquor store and bought some whiskey, and then went to Kittle's grocery, where he played video games with two teenagers, including the victim. He stated that as he was leaving, the victim asked him for a ride to his sister's house in Porterdale, and the defendant offered to take him as far as Mr. B's convenience store on Highway 81 where he intended to buy some cigarettes. He arrived at Mr. B's between 12:00 and 1:00 p.m., dropped off the victim, and entered the store, purchasing his cigarettes from a certain cashier who worked there. Then he went home, bathed, and went to bed. He denied ever having been on the dirt lane where the victim's body was found.
The defendant gave several statements that day and the next. Each was essentially the same. Although he was asked each time to describe in detail his activities on the day of the crime, he never mentioned driving through his trailer park with the boy in his vehicle, or having gone to the post office in Jersey, or having been in Mr. B's convenience store at 6:48 p.m.
It was shown that the cashier at Mr. B's from whom the defendant claimed to have purchased his cigarettes early in the afternoon of August 8 did not work at all that day. The cashiers who did work that day remembered that he stopped by that evening, but could not remember his being there at any other time that day.
Investigators at the crime scene discovered a stump, obscured by vegetation, on the right hand side of the lane, opposite the small clearing on the left where the victim's body was found. It appeared to have been damaged recently. The state theorized that someone attempting to turn around in the narrow lane by backing into the clearing could have run over the stump. A piece of chrome trim, a wire clip, and a chip of Ford Bahama Blue paint were found next to the stump.
The defendant's Ford truck was observed to have been damaged on its lower right front fender. A piece of chrome trim was missing from the bottom of the fender. Two retainers for the missing chrome trim remained on the fender; attached to one of these retainers was a wire clip identical to the one found at the crime scene, while the other retainer was missing its wire clip. A fresh leaf was caught in one of the retainers. It was identified by a botanist as having come from a Japanese Honeysuckle plant, like that growing around the stump.
The chrome trim piece found at the crime scene fit the fender of the defendant's truck, and its ribbed design matched the chrome trim on the bottom of the door. The paint on the defendant's truck, a small amount of paint on the trim piece, and the paint chip found near the stump were all microscopically and chemically analyzed and determined to be Ford Bahama Blue.
Between the crime scene and the town of Jersey, a stick, covered with electrical tape, similar to one the defendant commonly carried in the gunrack of his pickup, and consistent with having caused the injuries to the victim's head, was found by the side of the road. Abraded into a part of the surface of this stick was Ford Bahama Blue paint.
2. The indictment charged both malice murder and felony murder. The jury found the defendant guilty on both counts. The evidence, although circumstantial, is sufficient to establish beyond a reasonable doubt the defendant's guilt of the offense of malice murder. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). He contends the evidence fails to support his conviction for felony murder because the aggravated assault with a deadly weapon (the stick) did not kill the victim; the cause of death was ligature strangulation. This contention is moot, inasmuch as he was sentenced only on the malice murder count, and the felony-murder conviction stands vacated by operation of OCGA § 16-1-7(a).
3. The trial court did not err by admitting Kittle's testimony concerning the defendant's threats toward his ex-wife and her male companion. He made these threats just before he met the victim. These " " Walraven v. State, 250 Ga. 401, 408, 297 S.E.2d 278 (1982) (quoting Commonwealth v. Boulden, 179 Pa.Super. 328, 116 A.2d 867, 873 (1955)). See Frazier v. State, 257 Ga. 690(16), 362 S.E.2d 351 (1987).
4. The defendant contends the trial court erred by allowing in evidence state's exhibit three, the stick found by the side of the road between the crime scene and Jersey. Several witnesses testified that the stick looked similar to one commonly carried by the defendant prior to the murder. After the murder, the defendant no longer had the stick and told his interrogators that he could not remember what had happened to it. It was established that abraded onto the stick was Ford Bahama Blue paint, the same color as that on the defendant's truck. The autopsist testified that the wounds to the victim's head were consistent with having been inflicted by a weapon such as state's exhibit three. In these circumstances, the exhibit was properly admitted. Jung v. State, 237 Ga. 73(1), 226 S.E.2d 599 (1976); Harper v. State, 251 Ga. 183(1), 304 S.E.2d 693 (1983).
5. The defendant did not object to testimony that he had admitted having but "two female dates" in the eighteen months prior to the crime. The prosecutor argued from this and other evidence:
The motive for the killing, or lack thereof, was proper subject matter for the closing arguments of both the prosecution and the defense. The state's argument was based on the evidence and was not, as the defendant contends, improper. See Conner v. State, 251 Ga. 113(6), 303 S.E.2d 266 (1983).
6. On March 24, 1987, the Tuesday before the trial was to begin the next Monday, the district attorney and the defendant's attorney went to the state crime lab, talked to the state's experts, picked up all the evidence and returned to Newton County. On Wednesday, the district attorney reviewed the evidence with the GBI agents who investigated the case. They realized that no comparison or identification had been performed with respect to the leaf caught in the fender of the defendant's truck. The district attorney called the defendant's attorney and informed him that he planned to take that leaf and several from the vicinity of the stump to a botanist employed by the Department of Fish and Game. The botanist examined them microscopically and on Friday the district attorney wrote a report dictated to him by the botanist, had the botanist sign it, and furnished a copy to the defendant.
The defendant responded by filing a motion to exclude any testimony by the botanist on the ground that the written scientific report was not furnished at least 10 days before the trial...
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